US v. Eric Spanger, No. 11-4316 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4316 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ERIC ROCHAT SPANGER, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., Chief District Judge. (3:10-cr-00021-RJC-1) Submitted: November 29, 2011 Decided: December 15, 2011 Before KING, KEENAN, and DIAZ, Circuit Judges. Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion. John J. Cacheris, LAW OFFICE OF JOHN J. CACHERIS, P.C., Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Eric Spanger appeals his guilty plea one following Rochat firearm by a convicted § 922(g)(1) (2006). court erred in to felon, his count in 180-month of sentence possession violation of 18 of a U.S.C. On appeal, Spanger argues that the district sentencing him as an armed career criminal because the prior convictions on which that status was based Spanger s four North Carolina state convictions for breaking and entering were not exceeding one year. punishable by imprisonment for terms Following the filing of Spanger s opening appellate brief, the Government filed an unopposed motion to remand this case for resentencing in light of United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc). Spanger s conviction, vacate his sentence, properly designated We affirm and remand for resentencing. A defendant is an armed career criminal if he is subject to the enhanced sentence under the provisions of 18 Guidelines Manual U.S.C. § 924(e) § 4B1.4(a) (2006). (2010). The U.S. Sentencing enhanced sentence under 18 U.S.C. § 924(e) applies to a defendant who violates 18 U.S.C. § 922(g) and has three previous convictions . . . for a violent felony or a serious drug offense, or both. § 924(e)(1). 18 U.S.C. To qualify as a violent felony, the conviction 2 at issue must be punishable exceeding one year. by imprisonment for a term Id. § 924(e)(2)(B). Spanger argues that his prior state convictions for breaking and imprisonment entering were exceeding punishable year. one not See by terms N.C. Gen. of Stat. § 15A-1340.17(c)-(d) (2009) (setting forth minimum and maximum sentences applicable Sentencing Act). district United court, States under When it the Spanger North raised foreclosed Simmons, v. was 635 by F.3d Carolina this our 140, argument panel 146 Structured in the decisions (4th Cir. in 2011) (holding that, to determine whether a North Carolina conviction for a crime is punishable by a prison term exceeding one year, a court is to consider the maximum aggravated sentence that could be imposed possible for that criminal crime upon history a defendant (internal with quotation the marks worst and emphasis omitted)), and United States v. Harp, 406 F.3d 242, 246 (4th Cir. 2005) (same). The en banc decision in Simmons reversed this precedent, holding that a prior North Carolina offense is punishable by imprisonment for a term exceeding one year only if the particular defendant is eligible for such a sentence account under his the criminal applicable history statutory and Simmons, 649 F.3d at 241-47. 3 the scheme, nature of taking his into offense. Applying the en banc decision in Simmons here, we conclude after review of the state judgment that Spanger s prior North Carolina imprisonment felonies. state convictions exceeding were one not year. punishable The offenses N.C. Gen. Stat. § 14-54(a) (2009). judgment reveals that Spanger had by terms were of class H Additionally, the eight prior record points resulting in a prior record level of III and that Spanger was sentenced in the presumptive range. Under the North Carolina Structured Sentencing Act, Spanger could not have been imprisoned for terms convictions. N.C. 1340.17(c)-(d) exceeding Gen. (2009). one Stat. The year §§ for his prior 15A-1340.14(c)(3), convictions were therefore not proper predicate convictions for purposes of 18 U.S.C. § 924(e). Accordingly, we grant the Government s motion, vacate Spanger s sentence, and remand the case to the district court for resentencing. appeal, and we Spanger does not challenge his conviction on therefore affirm it. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED IN PART, VACATED IN PART, AND REMANDED 4
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